MUKTESHWAR PRASAD, J. Three accused, Kishan Vir, Sadhu and Subey have filed this appeal against the judgment and order dated 28-2-1981 passed by Smt. M. Chaudhary, the then Additional Sessions Judge, Etah whereby she convicted Kishan Vir under Section 307 of Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years. She found Sadhu and Subey guilty for the offence punishable under Section 307 read with Section 34 of Penal Code and sentenced them to suffer rigorous imprisonment for a period of five years. 2. Briefly stated, the facts of the prosecution case are as under: Parsadi son of Manohar a resident of Sidhpura (Etah) was the informant who expired during pendency of the case in the trial Court. He had three sons, Virendra, Ram Kishore and Ram Prakash in the year 1977. Ram Prakash was a servant of Kishan Vir at his flour Mill on a monthly salary of Rs. 30/ -. Ram Prakash worked for 25 days only at the flour Mill but he received salary for the whole month in advance. Ram Prakash went to his Sasural. On 28-8-1977 at about 8. 00 p. m. accused, Kishan Vir armed with a gun, Sadhu and Subey armed with lathi arrived at the house of informant (Parsadi ). Parsadi, his wife Ram Shree and his son Virendra and Ram Kishore were lying/sitting in their hut. Accused Kishan Vir called out Parsadi. He came out of the hut and asked Kishan Vir and others to sit, whereupon Kishan Vir used abusive language and lodged a protest that Ram Prakash did not go to his Flour Mill and was absent for the last several days. He had received salary of the whole month. Parsadi disclosed that his son Ram Prakash had gone to his Sasural and he would repay the salary of five days after arranging money. He told the accused that his son would not work on monthly salary of Rs. 30/- only. Kishan Vir lost his temper and threatened to teach him a lesson. He asked his associates Sadhu and Subey to caught Parsadi and with a view to kill, Kishan Vir fired a shot, which hit Parsadi in the back and left arm. After sustaining fire-arm injury, Parsadi fell down. The sons and wife of Parsadi rushed to rescue him. Kishan Vir lost his temper and threatened to teach him a lesson. He asked his associates Sadhu and Subey to caught Parsadi and with a view to kill, Kishan Vir fired a shot, which hit Parsadi in the back and left arm. After sustaining fire-arm injury, Parsadi fell down. The sons and wife of Parsadi rushed to rescue him. They were threatened by Sadhu and Subey that they would also be killed in case they tried to save Parsadi. The incident was witnessed by co-villagers Ram Sanehi, Har Dayal, Shiv Dayal and others. The witnesses saved the life of Parsadi otherwise he would have been killed. 3. Next morning Parsadi got a report prepared by his son Virendra and reached Police Station Sidhpura and lodged F. I. R. The local police registered a case at 8. 30 a. m. at crime No. 119. An entry was made in G. D. 4. The local police sent the injured Parsadi to P. H. C. Sidhpura for medical examination of his injuries where P. W. 5 Dr. A. K. Sharma examined him on 29-8- 1977 at 11 30 p. m. and found multiple gunshot wounds in an area of 15 cm. x 12 cm. on outer surface of left elbow just below it. Blackening present. Contused (red) swelling present 8 cm. down and 6 cm. above the left elbow, wrist and on inner aspect. No fresh bleeding. He was advised X-ray of left elbow. 5. Multiple abrasions in an area of 12 cm. x 5 cm. on left side of back just above the hip. In the opinion of Dr. Sharma, the injury No. 1 was caused by fire-arm and injury No. 2 by hard and rough object and was simple. The injuries were half day old at the time of examination. 6. The case was investigated by S. I. K. S. Sisodia. He interrogated Parsadi and his son Virendra at the Police Station itself. Thereafter, he reached the place of occurrence and prepared a site plan and recorded the statement of Har Dayal and Ram Sanehi. He collected blood stained earth from the spot. On 31-7-1977 he was transferred to Lalitpur. 7. On 11-9-1977, S. I. Sanwalia Singh took up the investigation and interrogated Shiv Dayal and Smt. Ram Shree. After completing investigation, he submitted charge-sheet against all the three accused, named in the F. I. R. 8. He collected blood stained earth from the spot. On 31-7-1977 he was transferred to Lalitpur. 7. On 11-9-1977, S. I. Sanwalia Singh took up the investigation and interrogated Shiv Dayal and Smt. Ram Shree. After completing investigation, he submitted charge-sheet against all the three accused, named in the F. I. R. 8. Accused Kishan Vir was charged under Section 307 I. P. C. and remaining two accused Sadhu and Subey were charged under Section 307 read with Section 34 of Penal Code to which they pleaded not guilty and claimed to be tried. 9. Accused Kishan Vir and Sadhu expired during pendency of this appeal. 10. In order to substantiate the allegations, the prosecution examined P W 1 Virendra Singh son of the informant and one of the eye-witness, P. W. 2, Smt. Ram Shree, wife of the injured and an eye-witness, P. W. 3 Shiv Dayal an eye-witness, P. W. 4 Ram Prakash, another son of injured, P W 5 Dr. A. K. Sharma who examined the injures. Parsadi on 29-8-1977 at P. H. C. Sidhpura, P. W. 6 S. I. Sawalia Singh, IInd Investigating Officer and P. W. 7 S. I. Kamal Singh Sisodia, 1st Investigating Officer of the case. 11. Accused Subey in his statement given under Section 313 Cr. P. C. totally denied all the accusation levelled by the prosecution and pleaded his false implication on account of enmity. According to him, the prosecution witnesses were inimical to him. Accused Subey led no evidence in his defence. 12. After close scrutiny and analysis of the entire evidence on record led by the prosecution and considering the arguments advanced on behalf of the parties also learned Judge found all the three accused guilty and convicted and sentenced them, as mentioned above. 13. Aggrieved by their conviction and sentence, all the three accused came up in appeal. 14. I have heard learned counsel for the appellant at length and learned A. G. A. also. I have gone through the lower Court record also. Learned counsel for the appellant has vehemently urged that there was no source of light at the time of incident and as such, witnesses could not recognize the assailants and appellant was falsely implicated. The informant and injured (Parsadi) died during pendency of the case in the trial Court and was not examined. Learned counsel for the appellant has vehemently urged that there was no source of light at the time of incident and as such, witnesses could not recognize the assailants and appellant was falsely implicated. The informant and injured (Parsadi) died during pendency of the case in the trial Court and was not examined. It was further urged that learned Judge committed illegality in convicting the surviving appellant (Subey) with the aid of Section 34 I. P. C. and there was no common intention amongst the accused and no force was used by the appellant. Consequently, the appeal must succeed and appellant is entitled to be acquitted. 15. On the other hand, learned A. G. A. submitted that Sadhu and Subey accompanied the main assailant Kishan Vir, who was armed with a gun and Kishan Vir, fired a single shot at Parsadi in furtherance of their common intention. The surviving appellant was also armed with a lathi and they tired to catch Parsadi on the exhortation of Kishan Vir and further threatened the wife and son of injured not to rescue Parsadi and used filthy language and therefore Subey was rightly convicted with the aid of Section 34 of Penal Code. 16. After having given my anxious consideration to the arguments advanced on behalf of the parties and material on record, I find that learned Judge committed no illegality or error in appraisal of the evidence led by the prosecution. As noted above, Dr. Sharma found multiple gun shot wounds in an area of 15 cm. x 12 cm. This injury was caused by fire-arm and there was blackening also. It means Kishan Vir fired a shot at Parsadi from a close range with a view to kill him but he could not repeat fire on account of presence of members of family and arrival of witnesses on the post. It is true that Parsadi expired during pendency of the case and he could not be examined. I, however, find that P. W. 1 Virendra, P. W. 2 Smt. Ram Shree, P W, 3 Shiv Dayal who was an independent eye witness and P. W. 4 Ram Prakash fully supported the prosecution story and testified in clear words that Ram Prakash was employed as servant at the Flour Mill of Kishan Vir on monthly salary of Rs. 30 and on the impugned date, he had gone to his Sasural. 30 and on the impugned date, he had gone to his Sasural. It was urged that Kishan Vir had no Flour Mill therefore, a false case was set up by the injured. Even if it be assumed that there was no Flour Mill owned by Kishan Vir or there was no motive to Kishan Vir to kill Parsadi, the present case is based on the direct evidence of the eye witnesses. It is well settled that the cases, which are based on, direct ocular evidence, the motive has no significance. 17. In the present case, besides the members of family of the injured, P W 3 Shiv Dayal fully corroborated the testimony of other witnesses and testified that he saw Kishan Vir, Sadhu and Subey standing near the hut of Parsadi with gun and lathi in their hands. All the four witnesses were cross examined extensively and effectively by the accused but nothing material could be elicited to show that they have not spoken truth. 18. So far as source of light is concerned, there is sufficient and reliable evidence on record that it was a moonlit night and an earthen lamp was also burning near the hut, therefore, the witnesses were in a position to identify the assailants. It is noteworthy that the trial Judge has also found that there was sufficient light of moon in which the witnesses recognized the culprits. 19. It was urged with vehemence that accused did not have any common intention and Subey did not use his lathi and cause no injury to Parsadi. It is true that Dr. Sharma found no lathi injury on the person of Parsadi at the time of medical examination. However, it has come in the testimony of Virendra and Shiv Dayal that Sadhu and Subey were armed with lathies and Kishan Vir exhorted them to catch Parsadi and they prevented the family members from rescuing him. It transpires from perusal of written report also that Sadhu and Subey accompanied main accused (Kishan Vir) went to the hut of Parsadi and Kishan Vir asked them to apprehend Parsadi and others and threatened to kill them. Therefore, it is not possible to conclude that Kishan Vir alone was responsible for causing the injury to Parsadi and remaining two accused played no role. 20. Therefore, it is not possible to conclude that Kishan Vir alone was responsible for causing the injury to Parsadi and remaining two accused played no role. 20. In my considered opinion, there was prior meeting of minds and they had planned to commit murder of Parsadi and with this view end in they reached the informants hut to teach him a lesson because his son was not attending his duties at Flour Mill. I, therefore, hold that provisions of Section 34 I. P. C. are attracted and the trial Judge was wholly justified in convicting Subey also with the aid of Section 34 I. P. C. 21. In view of the foregoing discussion, I find that the appellant No. 3 (Subey) was rightly found guilty and convicted under Section 307 read with Section 34 of Penal Code and his conviction is sustainable. 22. So far as sentence is concerned, it has been urged that end of justice will be met in case appellant is sentenced to the period already undergone by him. I have considered the contention of the learned counsel for he appellant on this point. It is correct that the incident in question took place on 28-8-1977 and since then, about 27 years have passed The appellant was convicted on 28-2-1981 and this appeal has been heard in the year 2004. In this view of the matter, I am of the opinion that it will not be just and proper to send the appellant to Jail again to serve out the sentence. The appeal is, therefore, disposed of as under : 23. The appeal is partly allowed. The conviction of appellant Subey under Section 307 read with Section 34 I. P. C. is confirmed and he is sentenced to the period already undergone by him and to pay a fine of Rs. 5,000/- within a period of three months from today. In default, he is ordered to suffer rigorous imprisonment for a period of six months. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appeal partly allowed. .